What was Tenancy Tribunal case 4987108 about?

The tribunal order states: The landlord’s name and identifying details including the tenancy address must

How much money was awarded in case 4987108?

Cleaning: $250.00 awarded to landlord; Eviction Fee: $258.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Rent Arrears: $251.49 awarded to landlord

What type of tenancy dispute was case 4987108?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4987108?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10891287-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4987108 about?

The tribunal order states: The landlord’s name and identifying details including the tenancy address must

How much money was awarded in case 4987108?

Cleaning: $250.00 awarded to landlord; Eviction Fee: $258.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Rent Arrears: $251.49 awarded to landlord

What type of tenancy dispute was case 4987108?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4987108?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10891287-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4987108 — Rent arrears

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New Zealand Tenancy Tribunal Case 4987108 — Rent arrears | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4987108 — net $566.49 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 18 August 2024	$251.49	Rent arrears to 18 August 2024
Eviction fee	$258.00	Eviction fee
Cleaning	$250.00	Cleaning
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$566.49
Total payable by Tenant to Landlord	$566.49

Claims and awards for application 4987108 — net $566.49 NZD. Verify on MoJ.

Rent arrears to 18 August 2024

Amount: $251.49
Awarded to: Landlord
Reason: Rent arrears to 18 August 2024

Eviction fee

Amount: $258.00
Awarded to: Landlord
Reason: Eviction fee

Cleaning

Amount: $250.00
Awarded to: Landlord
Reason: Cleaning

Filing fee reimbursement

Amount: $27.00
Awarded to: Landlord
Reason: Filing fee reimbursement

Net award

Landlord $566.49

Total payable by Tenant to Landlord

Landlord $566.49

Dismissed claims

Outgoings — 12 Er v [Landlord] [2019] Manukau

Claim types — money lines allowed on this order

Cleanliness Filing Fee Rent arrears

Order

The landlord’s name and identifying details including the tenancy address must not be published.
Meng Chiau Er must pay [the landlord] $566.49 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $220.00 (6244914-003) to [the landlord] immediately.
The claim are allowed as set out in this order and its

Reasons

. All other claims are dismissed. DescriptionLandlordTenant Rent arrears to 18 August 2024$251.49 Eviction fee$258.00 Cleaning$250.00 Filing fee reimbursement$27.00 Total award$786.49 Bond$220.00 Total payable by Tenant to Landlord$566.49

Reasons:

Both parties attended the hearing in person.
A Mandarin interpreter assisted the Tribunal with interpretation for the landlord.
Mr Er claims the landlord removed a telephone with free local calling, failed to fix a faulty oven, and seeks repayment of rent due to the premises being an unlawful premises.
The landlord seeks rent arrears, outgoings, compensation, reimbursement of the filing fee, and payment over of the bond, following the end of the tenancy. Background
The tenancy began in 2018 and the District Court granted the landlord possession in August 2024.
The landlord does not speak much English. Probably in 2018 he spoke even less. The landlord’s lack of English was probably a major barrier to his understanding his rights and obligations as a landlord under New Zealand law.
Enter Mr Er. Mr Er has good English and a better understanding of the residential tenancy rules than the landlord. He probably drafted the terms of a six-paragraph tenancy agreement. The rent was set at $110.00. The tenancy was subject to the Residential Tenancies Act 1986 (RTA).
The premises include a bedroom in a rear building, a shared upstairs bathroom in the main house, and access to a kitchen
There have been at least six prior claims in the Tribunal, including for the landlord failing to lodge the bond, the premises being unlawful premises, 1 and challenges to several of the landlord’s notices endeavouring to end the tenancy. 2
Despite the landlord’s attempts to end the tenancy, and the Tribunal terminating the tenancy on 16 October 2020, and it finding that the premises were unlawful premises on 7 March 2021, Mr Er has steadfastly declined to leave the premises until he eventually moved out in August 2024.
Mr Er appealed the Tribunal’s 2020 decision terminating the tenancy. The decision dismissing his appeal was delivered on 19 June 2024 and required Mr Er to vacate the premises by 5:00pm on 2 August 2024. Mr Er still did not move out as ordered, however. 1 Er v [Landlord] [2021] NZTT Manukau 4195131, 4205483, 4222675. 2 See for instance Er v [Landlord] [2020] NZTT Manukau 4195131, 4205483, 4220397, 4222675. See paras 2 - 20 for a summary of the “the lengthy history to these applications”.
Mr Er did not appeal the Tribunal’s decision of 7 March 2021 in which the Tribunal found the premises was an unlawful premises and ordered the landlord to pay Mr Er a partial refund of rent, but refused to order any refund of the rent after the date of its earlier decision of 16 September 2020. In that regard, the Tribunal found: 3
Mr Er told me that he should receive a full refund of rent because his choice to continue to live at the property (and to fight hard to do so), was made on the assumption that the premises were lawful. I have taken this into account and awarded him a full refund of rent for the first part of his tenancy, and a half refund for the period during which he chose to stay but the compliance issues had not been made clear. These issues were however discussed by me during the 6 August 2020 hearing and I made clear directions and orders about them on 16 September 2020. I consider it reasonable that Mr Er pay full rent from after that date as he has elected to remain with full awareness of the issues.
On 29 June 2024, Mr Er brought his current application.
On 28 August 2024, the landlord filed his application.

Did the landlord remove a telephone that was part of the tenancy?

The tenant says the landlord was supposed to provide a landline for his use as a term of the tenancy agreement.
The landlord insists Mr Er always had access to a telephone. He says, the copper line for the original telephone was decommissioned in about 2018, but it was immediately replaced by another telephone that used the newly-installed fibre optic cable.
There are several weaknesses in Mr Er’s claim. Firstly, it is not clear that the tenancy agreement included a term that the landlord provide tenant with access to a telephone that could make free local calls. The written tenancy agreement makes no mention of telephone services. The weekly rent was only $110.00 per week. Such a modest rent does not suggest the landlord would provide more than the basics. Moreover, tenants typically pay for their own telephone costs. That is consistent with the RTA s 39(3) principle that tenants are responsible for all outgoings in that are exclusively attributable to them.
Second, the evidence as to whether or not the landlord immediately replaced the telephone is of a “tenant says/landlord says” variety with no corroborative evidence that proves the presence or absence of the telephone either way. 3 Note 1 at para 35.
Third, Mr Er produced a 14-day notice complaining about the telephone issue in Tribunal proceedings in 2018, but he has not pursued his complaint further until now, almost six years later despite having made many claims to the Tribunal in which the matter could have been pursued. The claim is de minimis and ought to have pursued earlier than now. Pursuant to the rule in Henderson v Henderson, if a party fails to raise an argument that they could and should have raised in an earlier proceeding, they will generally not be allowed to do so in a later proceeding. In other words, litigation should not be undertaken by instalment. 4
Fourth, Mr Er provided no evidence to quantify his loss. He estimates not being able to call local numbers would have caused him loss of about $150.00, but there is no documentation to support that assessment.
The fundamental weaknesses include that Mr Er has not proved that the provision of a phone was a term of the agreement or that, in any event, the landlord did not provide a phone during the tenancy.
This claim is dismissed. 5

Did the landlord fail to maintain the oven?

The tenant says the landlord failed to repair an oven that he was allowed to use.
The tenant issued the landlord with a 14-day notice on 19 February 2024. Legal principles
Under s 45(1)(b) of the RTA, landlords must maintain the premises in a reasonable state of repair. That provision provides: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes... 4 Shaw v Green & Centrepoint Ltd [2023] NZHC 605 at [45]. 5 The lack of evidence is sufficient reason for the claim to be dismissed. It is liable to be dismissed for the other matters discussed also but it is not necessary to further and it would not be a sensible use of Tribunal resources to do so.
Landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 6 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 7 “...the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be...”
Tenants have a duty to notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repair. 8 However, Landlords also have an obligation to repair things that are apparent from observation: 9 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation... Discussion
The landlord disputes that the oven was not working. He says that he and his family used the oven, and it worked perfectly well.
The only evidence the oven was not working is Mr Er’s evidence before me at the hearing and his 14-day notice. Similarly, the landlord’s denials are not supported by evidence other than his own statements.
There is a distinct lack of persuasive evidence that the oven did not work properly. There is no evidence from a contractor, another tenant who lived at the premises, or any independent person, for example.
The tenant bears the onus of proving that the oven was malfunctioning on the balance of probabilities. I am not persuaded on the balance of probabilities that the oven was not working properly
It follows, this claim must be dismissed. 6 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 7 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. 8 RTA, s 40(1)(d). 9 See n 4.

Should the landlord refund rent for the premises being unlawful?

Mr Er wants the Tribunal to revisit the issue of remedy for the premises being unlawful.
As discussed, the Tribunal declined to order any rent refund after 16 September 2020 in its 2021 decision because: 10 These issues were however discussed by me during the 6 August 2020 hearing and I made clear directions and orders about them on 16 September 2020. I consider it reasonable that Mr Er pay full rent from after that date as he has elected to remain with full awareness of the issues.
I consider this matter has already been decided. It is res judicata or subject to issue estoppel. If a previous issue has been decided, parties are estopped from arguing the same issue again.
In her decision in 2021, the learned adjudicator determined that no further rent reduction should be applied from after her earlier decision of 16 September 2020. Now Mr Er wants me to order a full refund for the period after the learned adjudicator’s decision of 7 March 2021. However, the Tribunal’s decision and its reasons apply with yet more force after 7 March 2021, the date on which Tribunal formally found the premises were unlawful.
Even if the Tribunal were not estopped for further considering the matter, I would not have considered it fair to make any deduction of rent under s 78A(4) of the RTA as sought. Mr Er paid modest rent. He did not have to pay for power or other outgoings. The living conditions were not bad, and the landlord lived on the property with his family himself. Mr Er was on a good wicket and the situation was clearly to his liking because he persistently declined to move out. 11
This claim is dismissed. Is the tenant liable for rent, outgoings, and bailiffs’ fees? Rent
The tenant has paid rent until 2 August 2024. 10 See n 2. 11 See also Chen v Kumar [2022] NZDC 7783 for the relevance of these matters.
Under s 40(1)(e) of the RTA, the end of the tenancy, tenants must: (i) quit the premises; and (ii) remove all his or her goods from the premises; and (iii) leave the premises in a reasonably clean and reasonably tidy condition, and remove or arrange for the removal from the premises of all rubbish; and (iv) return to the landlord all keys, and security or pass cards or other such devices, provided by the landlord for the use of the tenant; and
District Court Judge, Judge Kelly ordered possession on 2 August 2024.
Mr Er accepts he failed to comply with the order. He says he moved out only a week late, on 8 and 9 August. He produced a receipt proving he leased a vehicle to move his possessions out of the premises.
The landlord lives on the property the premises are in. He says that Mr Er did not move out until the bailiffs reclaimed possession of the premises on the landlord’s behalf on 19 August 2024.
The tenant accepts he was at the premises the day the bailiffs attended, but says he just happened to be at the premises that day to do some final cleaning.
Mr Er breached the District Court’s vacate order by his own admission, which suggests he did not pay due regard to the order. He did not ask for the landlord’s permission to enter the property on 19 August, indicating he considered he had an entitlement to be on the premises and had not quit them. By his own admission, he had not completed his move-out duties such as cleaning. He had not returned the keys.
Mr Er obdurately refused to move out of the premises despite repeated attempts to remove him and despite the Tribunal’s order in 2020 requiring him to move out. That he declined to move out once again is consistent with his earlier refusals to move out despite orders by the Tribunal and District Court respectively and despite the landlord’s termination notices.
Nor were there any written communications from Mr Er to the landlord to prove he had moved out earlier.
Considering all the evidence, I prefer the landlord’s evidence that Mr Er had not moved out until the bailiffs removed him. Nor had he attended to all of his other move out obligations.
Mr Er must reimburse the landlord for rent up to the end of 18 August 2024. Bailiffs’ costs
The landlord paid for the bailiffs to remove the tenant. The landlord had to do so because the tenant refused to obey the Court’s order. The tenant is liable for the landlord’s cost. Outgoings
The landlord provided rent records that prove the amount of rent arrears owing.
The landlord claims for outgoings.
Under s 39(3) of the RTA, tenants are “responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities”. The landlord produced one Watercare invoice in the landlord’s name, from September 2020, a Spark invoice from July 2024 in the landlord’s name, and a Mercury power invoice in his name from September 2020.
Mr Er says the agreement was that outgoings were included in the rent.
I am not satisfied on the balance of probabilities that the tenant ever contracted to pay outgoings in addition to the rent payments.
These invoices do not prove what outgoings were “exclusively attributable to the tenant’s occupation of the premises”.
Nor could Mr Er produce evidence to show that there was term of the agreement that Mr Er had to pay outgoings in addition to rent.
The landlord’s claim for outgoings was filed on 28 August 2024, about 10 days after the tenancy had ended. The landlord did not produce any evidence that he had pursued the tenant for outgoings previously. This claim is also infected by breach of the Henderson v Henderson principles discussed above in respect to Mr Er’s claim about the telephone.
The landlord referenced an earlier Tribunal decision in which the Tribunal found the landlord’s purported rent increase was invalid, but that does nothing to prove this late claim that the tenant is liable for a portion of the outgoings. 12
The claim for outgoings is dismissed. 12 Er v [Landlord] [2019] Manukau 4166820.

Did the tenant breach his cleanliness obligations?

Tenants “must keep the premises reasonably clean and reasonably tidy”. 13
On occasion, the tenant defecated outside in the grounds when he had to urgently empty his bowels when someone was already using the bathroom, and he could not hold on.
The landlord says he had to clean Mr Er’s excrement up from the outdoor areas on approximately 10 occasions.
Mr Er, however, says he always cleaned up after himself and the landlord never had to do it.
The landlord had photographs of the excrement in situ. On 24 January 2023, the landlord messaged Mr Er: The below was found [image of excrement] at the door behind your room. We believe this belongs to you...could you please remove this and ensure you keep this spot clean for future.
Mr Er did not dispute that he defecated on the grounds as the landlord claimed; only that, he always cleaned up after himself.
It is more probable than not that the landlord cleaned up after the tenant on some occasions. The landlord had taken photographs of the soiling. It is not the sort of contamination that one would naturally want to leave lying about for long given the health implications and revulsion it would cause.
Even if Mr Er had “emergencies”, his way of dealing with them resulted in the premises not being kept reasonably clean. He could have used a receptacle or cleaned up after himself promptly rather than inconsiderately leaving his excrement for others to come upon. The fact the landlord could take photographs demonstrate that the tenant did not clean up after himself in a timely way.
The landlord did not incur a financial loss because he did not pay any contractors to do the cleaning.
However a nominal order for damages is appropriate as recognition of the tenant’s breach and its impact on the landlord, his family, and other occupants of the address.
Nominal damages of $250.00 are ordered. 13 RTA, s 40(1)c). Filing fee
Mr Er must reimburse the landlord for the filing fee because the landlord has been substantially successful in his application and reimbursement is appropriate. Bond
The bond is to be paid over to the landlord to meet part of the debt under this decision. Non-publication
The landlord seeks an order for non-publication.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The landlord has substantially succeeded in the proceedings. I do not consider publication is in the public interest or is justified by the landlord’s conduct or any other circumstances of the case.
The landlord’s request for non-publication is granted.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4987108 — net $566.49 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 18 August 2024	$251.49	Rent arrears to 18 August 2024
Eviction fee	$258.00	Eviction fee
Cleaning	$250.00	Cleaning
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$566.49
Total payable by Tenant to Landlord	$566.49

Claims and awards for application 4987108 — net $566.49 NZD. Verify on MoJ.

Rent arrears to 18 August 2024

Amount: $251.49
Awarded to: Landlord
Reason: Rent arrears to 18 August 2024

Eviction fee

Amount: $258.00
Awarded to: Landlord
Reason: Eviction fee

Cleaning

Amount: $250.00
Awarded to: Landlord
Reason: Cleaning

Filing fee reimbursement

Amount: $27.00
Awarded to: Landlord
Reason: Filing fee reimbursement

Net award

Landlord $566.49

Total payable by Tenant to Landlord

Landlord $566.49

Dismissed claims

Outgoings — 12 Er v [Landlord] [2019] Manukau

Claim types — money lines allowed on this order

Cleanliness Filing Fee Rent arrears

Order

The landlord’s name and identifying details including the tenancy address must not be published.
Meng Chiau Er must pay [the landlord] $566.49 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $220.00 (6244914-003) to [the landlord] immediately.
The claim are allowed as set out in this order and its

Reasons

Reasons:

Both parties attended the hearing in person.
A Mandarin interpreter assisted the Tribunal with interpretation for the landlord.
Mr Er claims the landlord removed a telephone with free local calling, failed to fix a faulty oven, and seeks repayment of rent due to the premises being an unlawful premises.
The landlord seeks rent arrears, outgoings, compensation, reimbursement of the filing fee, and payment over of the bond, following the end of the tenancy. Background
The tenancy began in 2018 and the District Court granted the landlord possession in August 2024.
The landlord does not speak much English. Probably in 2018 he spoke even less. The landlord’s lack of English was probably a major barrier to his understanding his rights and obligations as a landlord under New Zealand law.
Enter Mr Er. Mr Er has good English and a better understanding of the residential tenancy rules than the landlord. He probably drafted the terms of a six-paragraph tenancy agreement. The rent was set at $110.00. The tenancy was subject to the Residential Tenancies Act 1986 (RTA).
The premises include a bedroom in a rear building, a shared upstairs bathroom in the main house, and access to a kitchen
There have been at least six prior claims in the Tribunal, including for the landlord failing to lodge the bond, the premises being unlawful premises, 1 and challenges to several of the landlord’s notices endeavouring to end the tenancy. 2
Despite the landlord’s attempts to end the tenancy, and the Tribunal terminating the tenancy on 16 October 2020, and it finding that the premises were unlawful premises on 7 March 2021, Mr Er has steadfastly declined to leave the premises until he eventually moved out in August 2024.
Mr Er appealed the Tribunal’s 2020 decision terminating the tenancy. The decision dismissing his appeal was delivered on 19 June 2024 and required Mr Er to vacate the premises by 5:00pm on 2 August 2024. Mr Er still did not move out as ordered, however. 1 Er v [Landlord] [2021] NZTT Manukau 4195131, 4205483, 4222675. 2 See for instance Er v [Landlord] [2020] NZTT Manukau 4195131, 4205483, 4220397, 4222675. See paras 2 - 20 for a summary of the “the lengthy history to these applications”.
Mr Er did not appeal the Tribunal’s decision of 7 March 2021 in which the Tribunal found the premises was an unlawful premises and ordered the landlord to pay Mr Er a partial refund of rent, but refused to order any refund of the rent after the date of its earlier decision of 16 September 2020. In that regard, the Tribunal found: 3
Mr Er told me that he should receive a full refund of rent because his choice to continue to live at the property (and to fight hard to do so), was made on the assumption that the premises were lawful. I have taken this into account and awarded him a full refund of rent for the first part of his tenancy, and a half refund for the period during which he chose to stay but the compliance issues had not been made clear. These issues were however discussed by me during the 6 August 2020 hearing and I made clear directions and orders about them on 16 September 2020. I consider it reasonable that Mr Er pay full rent from after that date as he has elected to remain with full awareness of the issues.
On 29 June 2024, Mr Er brought his current application.
On 28 August 2024, the landlord filed his application.

Did the landlord remove a telephone that was part of the tenancy?

The tenant says the landlord was supposed to provide a landline for his use as a term of the tenancy agreement.
The landlord insists Mr Er always had access to a telephone. He says, the copper line for the original telephone was decommissioned in about 2018, but it was immediately replaced by another telephone that used the newly-installed fibre optic cable.
There are several weaknesses in Mr Er’s claim. Firstly, it is not clear that the tenancy agreement included a term that the landlord provide tenant with access to a telephone that could make free local calls. The written tenancy agreement makes no mention of telephone services. The weekly rent was only $110.00 per week. Such a modest rent does not suggest the landlord would provide more than the basics. Moreover, tenants typically pay for their own telephone costs. That is consistent with the RTA s 39(3) principle that tenants are responsible for all outgoings in that are exclusively attributable to them.
Second, the evidence as to whether or not the landlord immediately replaced the telephone is of a “tenant says/landlord says” variety with no corroborative evidence that proves the presence or absence of the telephone either way. 3 Note 1 at para 35.
Third, Mr Er produced a 14-day notice complaining about the telephone issue in Tribunal proceedings in 2018, but he has not pursued his complaint further until now, almost six years later despite having made many claims to the Tribunal in which the matter could have been pursued. The claim is de minimis and ought to have pursued earlier than now. Pursuant to the rule in Henderson v Henderson, if a party fails to raise an argument that they could and should have raised in an earlier proceeding, they will generally not be allowed to do so in a later proceeding. In other words, litigation should not be undertaken by instalment. 4
Fourth, Mr Er provided no evidence to quantify his loss. He estimates not being able to call local numbers would have caused him loss of about $150.00, but there is no documentation to support that assessment.
The fundamental weaknesses include that Mr Er has not proved that the provision of a phone was a term of the agreement or that, in any event, the landlord did not provide a phone during the tenancy.
This claim is dismissed. 5

Did the landlord fail to maintain the oven?

The tenant says the landlord failed to repair an oven that he was allowed to use.
The tenant issued the landlord with a 14-day notice on 19 February 2024. Legal principles
Under s 45(1)(b) of the RTA, landlords must maintain the premises in a reasonable state of repair. That provision provides: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes... 4 Shaw v Green & Centrepoint Ltd [2023] NZHC 605 at [45]. 5 The lack of evidence is sufficient reason for the claim to be dismissed. It is liable to be dismissed for the other matters discussed also but it is not necessary to further and it would not be a sensible use of Tribunal resources to do so.
Landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 6 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 7 “...the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be...”
Tenants have a duty to notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repair. 8 However, Landlords also have an obligation to repair things that are apparent from observation: 9 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation... Discussion
The landlord disputes that the oven was not working. He says that he and his family used the oven, and it worked perfectly well.
The only evidence the oven was not working is Mr Er’s evidence before me at the hearing and his 14-day notice. Similarly, the landlord’s denials are not supported by evidence other than his own statements.
There is a distinct lack of persuasive evidence that the oven did not work properly. There is no evidence from a contractor, another tenant who lived at the premises, or any independent person, for example.
The tenant bears the onus of proving that the oven was malfunctioning on the balance of probabilities. I am not persuaded on the balance of probabilities that the oven was not working properly
It follows, this claim must be dismissed. 6 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 7 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. 8 RTA, s 40(1)(d). 9 See n 4.

Should the landlord refund rent for the premises being unlawful?

Mr Er wants the Tribunal to revisit the issue of remedy for the premises being unlawful.
As discussed, the Tribunal declined to order any rent refund after 16 September 2020 in its 2021 decision because: 10 These issues were however discussed by me during the 6 August 2020 hearing and I made clear directions and orders about them on 16 September 2020. I consider it reasonable that Mr Er pay full rent from after that date as he has elected to remain with full awareness of the issues.
I consider this matter has already been decided. It is res judicata or subject to issue estoppel. If a previous issue has been decided, parties are estopped from arguing the same issue again.
In her decision in 2021, the learned adjudicator determined that no further rent reduction should be applied from after her earlier decision of 16 September 2020. Now Mr Er wants me to order a full refund for the period after the learned adjudicator’s decision of 7 March 2021. However, the Tribunal’s decision and its reasons apply with yet more force after 7 March 2021, the date on which Tribunal formally found the premises were unlawful.
Even if the Tribunal were not estopped for further considering the matter, I would not have considered it fair to make any deduction of rent under s 78A(4) of the RTA as sought. Mr Er paid modest rent. He did not have to pay for power or other outgoings. The living conditions were not bad, and the landlord lived on the property with his family himself. Mr Er was on a good wicket and the situation was clearly to his liking because he persistently declined to move out. 11
This claim is dismissed. Is the tenant liable for rent, outgoings, and bailiffs’ fees? Rent
The tenant has paid rent until 2 August 2024. 10 See n 2. 11 See also Chen v Kumar [2022] NZDC 7783 for the relevance of these matters.
Under s 40(1)(e) of the RTA, the end of the tenancy, tenants must: (i) quit the premises; and (ii) remove all his or her goods from the premises; and (iii) leave the premises in a reasonably clean and reasonably tidy condition, and remove or arrange for the removal from the premises of all rubbish; and (iv) return to the landlord all keys, and security or pass cards or other such devices, provided by the landlord for the use of the tenant; and
District Court Judge, Judge Kelly ordered possession on 2 August 2024.
Mr Er accepts he failed to comply with the order. He says he moved out only a week late, on 8 and 9 August. He produced a receipt proving he leased a vehicle to move his possessions out of the premises.
The landlord lives on the property the premises are in. He says that Mr Er did not move out until the bailiffs reclaimed possession of the premises on the landlord’s behalf on 19 August 2024.
The tenant accepts he was at the premises the day the bailiffs attended, but says he just happened to be at the premises that day to do some final cleaning.
Mr Er breached the District Court’s vacate order by his own admission, which suggests he did not pay due regard to the order. He did not ask for the landlord’s permission to enter the property on 19 August, indicating he considered he had an entitlement to be on the premises and had not quit them. By his own admission, he had not completed his move-out duties such as cleaning. He had not returned the keys.
Mr Er obdurately refused to move out of the premises despite repeated attempts to remove him and despite the Tribunal’s order in 2020 requiring him to move out. That he declined to move out once again is consistent with his earlier refusals to move out despite orders by the Tribunal and District Court respectively and despite the landlord’s termination notices.
Nor were there any written communications from Mr Er to the landlord to prove he had moved out earlier.
Considering all the evidence, I prefer the landlord’s evidence that Mr Er had not moved out until the bailiffs removed him. Nor had he attended to all of his other move out obligations.
Mr Er must reimburse the landlord for rent up to the end of 18 August 2024. Bailiffs’ costs
The landlord paid for the bailiffs to remove the tenant. The landlord had to do so because the tenant refused to obey the Court’s order. The tenant is liable for the landlord’s cost. Outgoings
The landlord provided rent records that prove the amount of rent arrears owing.
The landlord claims for outgoings.
Under s 39(3) of the RTA, tenants are “responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities”. The landlord produced one Watercare invoice in the landlord’s name, from September 2020, a Spark invoice from July 2024 in the landlord’s name, and a Mercury power invoice in his name from September 2020.
Mr Er says the agreement was that outgoings were included in the rent.
I am not satisfied on the balance of probabilities that the tenant ever contracted to pay outgoings in addition to the rent payments.
These invoices do not prove what outgoings were “exclusively attributable to the tenant’s occupation of the premises”.
Nor could Mr Er produce evidence to show that there was term of the agreement that Mr Er had to pay outgoings in addition to rent.
The landlord’s claim for outgoings was filed on 28 August 2024, about 10 days after the tenancy had ended. The landlord did not produce any evidence that he had pursued the tenant for outgoings previously. This claim is also infected by breach of the Henderson v Henderson principles discussed above in respect to Mr Er’s claim about the telephone.
The landlord referenced an earlier Tribunal decision in which the Tribunal found the landlord’s purported rent increase was invalid, but that does nothing to prove this late claim that the tenant is liable for a portion of the outgoings. 12
The claim for outgoings is dismissed. 12 Er v [Landlord] [2019] Manukau 4166820.

Did the tenant breach his cleanliness obligations?

Tenants “must keep the premises reasonably clean and reasonably tidy”. 13
On occasion, the tenant defecated outside in the grounds when he had to urgently empty his bowels when someone was already using the bathroom, and he could not hold on.
The landlord says he had to clean Mr Er’s excrement up from the outdoor areas on approximately 10 occasions.
Mr Er, however, says he always cleaned up after himself and the landlord never had to do it.
The landlord had photographs of the excrement in situ. On 24 January 2023, the landlord messaged Mr Er: The below was found [image of excrement] at the door behind your room. We believe this belongs to you...could you please remove this and ensure you keep this spot clean for future.
Mr Er did not dispute that he defecated on the grounds as the landlord claimed; only that, he always cleaned up after himself.
It is more probable than not that the landlord cleaned up after the tenant on some occasions. The landlord had taken photographs of the soiling. It is not the sort of contamination that one would naturally want to leave lying about for long given the health implications and revulsion it would cause.
Even if Mr Er had “emergencies”, his way of dealing with them resulted in the premises not being kept reasonably clean. He could have used a receptacle or cleaned up after himself promptly rather than inconsiderately leaving his excrement for others to come upon. The fact the landlord could take photographs demonstrate that the tenant did not clean up after himself in a timely way.
The landlord did not incur a financial loss because he did not pay any contractors to do the cleaning.
However a nominal order for damages is appropriate as recognition of the tenant’s breach and its impact on the landlord, his family, and other occupants of the address.
Nominal damages of $250.00 are ordered. 13 RTA, s 40(1)c). Filing fee
Mr Er must reimburse the landlord for the filing fee because the landlord has been substantially successful in his application and reimbursement is appropriate. Bond
The bond is to be paid over to the landlord to meet part of the debt under this decision. Non-publication
The landlord seeks an order for non-publication.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The landlord has substantially succeeded in the proceedings. I do not consider publication is in the public interest or is justified by the landlord’s conduct or any other circumstances of the case.
The landlord’s request for non-publication is granted.

Tenancy Tribunal case 4987108 — Rent arrears

At a glance

Tenancy Tribunal case 4987108 — Rent arrears

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord remove a telephone that was part of the tenancy?

Did the landlord fail to maintain the oven?

Should the landlord refund rent for the premises being unlawful?

Did the tenant breach his cleanliness obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord remove a telephone that was part of the tenancy?

Did the landlord fail to maintain the oven?

Should the landlord refund rent for the premises being unlawful?

Did the tenant breach his cleanliness obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions